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Litigations are all about bundle of Issues...

Litigations are all about bundle of Issues...


1.      Issues are crux of any litigation, and they arose in every litigation, be it Writs, Contempt Petitions, Arbitration Petitions, Criminal Petitions Consumer complaints, and so one, notwithstanding the Courts are not formally framing them. In C.V. Joshi versus Elphinstone Spinning Mills, reported in 2001 (Supp) Bom CR (2) 57, the Bombay high Court observed that even in execution proceedings, the issues comes into play, though it is not technically necessary to frame them.

2.      Issues are like asking or addressing the right question, for the court to deal with; addressing the principal contentions, if any, between the parties; and once that is done, the other supplementary issues, either don’t survive, or if survive, they may be addressed with greater clarity.

3.      As observed by the Apex Court in J.K. Iron & Steel Company Limited, Kanpur versus The Iron & Steel Mazdoor Union – AIR 1956 SC 231, “the only point of requiring pleadings and issues, is to ascertain the real dispute between the parties, to narrow down the area of conflict and to see just where the two sides differ.

4.      Improper and unwarranted framing or understanding / agitating of issues is probably the main reason for delay in disposing of the cases, apart from causing unnecessary expenses to the parties to the case.

5.      Each type of case has specific set of issues that are to be decided, for, Issues springs from the law applicable to the nature of case litigated. Courts addressing itself with the correct Issues and laying down the foundation of the case, with proper issues is the key to expeditious disposal of case.

6.      Further, the arising of issues does not depend upon the pleadings of the parties. Like for example, so as to prevent collusive litigation in family matters, the Court secures that litigation played is genuine and not collusive. Similarly, in Ex-Parte decree / orders, the Petitioner / Plaintiff has to prove his case, notwithstanding there is no formal dispute to his case.

7.      Legally speaking, Issues arises when a material proposition of fact or law is affirmed by one party and denied by the other. The expression “material proposition”, it appears, stems from the mandate of the applicable law to the facts of the case.

8.      Therefore, to ascertain the correct issues involved in the litigation, it would be necessary to ascertain which of the Statutes and respective provisions are applicable to the litigation at hand. It is equally essential that there is sufficient pleading to support the issues involved.

How to ascertain correct Issues in the case

9.      The nature of Issues in each of the case would obviously depend upon the Reliefs prayed / claimed for. And thus Issues arises when the material facts, legal and factual, which need to be “proved” to claim the Reliefs, are expressly disputed by the other side. If the other side does not dispute any of the material proposition of fact, the Plaintiff / Petitioner is not required to lead evidence in respect of proving of that material fact. [section 58 of Indian Evidence Act, 1872]

10.  Unlike other kind of litigation, in Suits, the issues are formally framed. In the case of Makhan Lal Bangal Versus Manas Bhunia, AIR 2001 SC 490, the Apex Court in Para 19 said –  The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom.

The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ.

The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided.

The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue.

An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance.

The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues.

The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment.

If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies, not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him.

The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue wise would be able to tell precisely how the dispute was decided.

11.  Framing of Issues on the basis of vague Pleadings of the Parties –

Where the pleadings are vague and do not conform to the law of pleadings, as laid down in CPC, the issues may not be framed. The Bombay High Court in a case [2008 (6) BCR 788] before it, held that –

Appellant submitted that the plea raised by the defendants was vague and on such a vague plea no issue of tenancy could have been raised. Defendants had not given any particulars as to when the said tenancy was created, by whom it was created and the area regarding which it was created, and in the absence of such particulars, no issue ought to have been framed and referred to the Mamlatdar.

When a vague plea is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created. If the defendant is unable to furnish the same, the Court should not raise an issue on a vague plea that he, the defendant is a tenant on any particular piece of land. Normally the rules of pleadings require that these particulars are the minimum particulars which a man must furnish before he can request the Court to frame an issue as regards the claim made for tenancy.

12.  Specific denials in Written Statements
In the case of Manoj A.S.Dhargalkar Alias Kulkarni Versus Taramati Harichandra Salgaonkar – (2000) 4 BCR 508, the observation of Bombay High Court assume great significance when it said –

Para 10: A mere vague recital that the suit is not maintainable in law cannot give rise for framing of an issue as to the maintainability of the suit. Likewise mere assertion in the written statement that the defendants are in possession of the suit land since long or for many years without any knowledge thereof to the plaintiffs and without claiming the right of adverse possession does not warrant framing of issue on adverse possession.

The averments contained in the plaint which are not traversed in the written statement and as to which no issue has been asked for are to be deemed to be admitted. If the party intends to make a particular averment to be the subject matter of an issue in a suit, then it must be specifically denied. Mere non-admission could not warrant the Court to frame an issue in that regard.

It is well established that the Court is not bound to frame issues suo moto on questions of fact where the parties do not ask for the same. The omission to raise an issue on a point implies abandonment of such point by the party.

In fact, Rules 3, 4 and 5 of Or.8 of Code of Civil Procedure provides for an intergrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If the denial of a fact is not specific but evasive, then the said fact is to be taken to have been admitted. In such an event, the admission itself being proved, no other proof is necessary and the law in that regard is well settled since the decision of the Apex Court in the matter of Badat and Co. V/s. Eastern India Trading Co., AIR 1964 SC 538.

13.  Even a smallest error in the framing of issues may lead to the frustration of the rights of the parties.

In the case reported in 2009 (6) BCR 857, the Court observed –  The correct issue which should have been framed is – Does Plaintiff prove that he is in settled possession of the premises. AND NOT Does Plaintiff prove that he is in lawful possession of the premises. In the latter case it will cause confusion, as the question of title then crop in leading to obfuscation of the matter.

14.  Issues, if properly understood, and emphasized and stressed upon, may enormously reduce the length of the litigation and would secure “justice” for the parties.

15.  This write up is inspired from the Article authored by very Learned Colleague Advocate Shri S.A. Ahmed, Bombay High Court, on the subject of “Issues”. He may be contacted at ahmed_advhcbom@yahoo.com.

Thank you.
Sandeep Jalan
Advocate

Related Links



OBJECTIVE APPROACH TO THE CASE / POTENTIAL LITIGATION AT HAND




INSTITUTION OF PETITIONS / COMPLAINTS  (OTHER THAN SUITS AND CRIMINAL COMPLAINTS)




PREPARING ONESELF FOR FEARLESS ARGUMENTS BEFORE JUDGES / MAGISTRATES




Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
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